The questions for decision at this stage of the proceedings in this cause are raised by defendant's demand for security for costs in accordance with the statutes in such case made and provided, and by plaintiff's notice of motion, supported by her affidavit, for an order of court requiring defendant to pay to her a proper allowance for her support and maintenance and that of the child of the marriage in her custody, pendente lite , and for a reasonable sum for counsel fees and suit moneys to enable her to prosecute her said suit.
Defendant, in opposition, urges that no consideration be given to plaintiff's application until she has complied with the provisions of N.J.S. 2 A:15-67. The effect of his filed demand, he asserts, is to stay all proceedings in the cause under the terms of N.J.S. 2 A:15-69 until security for costs
is filed by the non-resident plaintiff. The cited statutes are as follows:
N.J.S. 2 A:15-67. "Where in any action in the superior court or a county court any plaintiff or any party asserting a counterclaim, cross-claim or third-party claim is a nonresident, he shall, if, at any time before trial, notice is given to him by an opposing party demanding security for costs, give bond in favor of the opposing party, or, if there is more than 1 making the demand, in favor of each of them, in the sum of $100, with sufficient surety, conditioned to prosecute the action with effect and to pay costs if the action is dismissed or judgment passes against him. If there is more than 1 plaintiff or claimant, they may give bond jointly in the sum of $100, all as aforesaid.
If the surety on the bond is an individual and not a corporation, he shall be a resident of this state.
The bond shall be filed in the office of the clerk of the court in which the action is pending."
N.J.S. 2 A:15-69. "Whenever a notice is given demanding from a nonresident party security for costs, all proceedings on his claim shall be stayed until the required security is filed or deposit made."
Plaintiff's complaint is in three counts. For a determination of the pending matters reference is had only to the first and second counts thereof. In a prior proceeding brought by defendant a summary judgment was entered in his favor against the plaintiff on the third count of her complaint. The first count of plaintiff's complaint is for alimony and maintenance on a charge of simple abandonment of her on or about September 27, 1950. Second count: that judgment be made against the defendant for the amount of the arrearages of alimony and support and maintenance due to plaintiff under the judgment obtained by her in the Supreme Court of New York in and for the County of Queens, a court of record of general jurisdiction, on the 29th day of April 1954, for $1,725, representing such arrearages, with interest from the 29th day of April 1954, together with costs amounting to $10. Plaintiff alleges she still owns and holds said judgment which remains in full force and effect. Involved also is support for and custody of the infant child of the parties -- a boy -- now four years of age.
The complaint of plaintiff is a "matrimonial matter" as defined in R.R. 4:93-2(a).
In resisting plaintiff's application pendente lite defendant contends he should not be required to furnish support and maintenance in the pending cause so long as there is a judgment in force in a New York court requiring him to pay alimony, support and maintenance in that jurisdiction. However, he has not shown a compliance with the terms of the said New York judgment and plaintiff has been compelled to ...